What Transgressions Are Involved in Changing Sex from Male to Female?By Beth Orens

For the purposes of this discussion, I will assume the position of Rav Eliezer Yehuda Waldenberg in his Tzitz Eliezer, which states that a post-operative male-to-female transsexual is considered female according to Jewish law.

There are a number of items to consider. The main prohibitions that are likely to be involved are castration of a male, and wearing women's clothing.

Wearing Women's Clothing:

There is no question that prior to surgery, a male-to-female transsexual is in violation of the prohibition of a male wearing women's clothing. One question we might ask is whether psychological factors might be relevant in terms of mitigating the severity of the transgression. In addition, since the prohibition (according to Rav Waldenberg) would end once surgery had been accomplished, we could ask if it be possible to countenance this violation for a short time for medical reasons.

If a person is required to take medication that violates the laws of kashrut, this violation is generally permitted, even if the medication will have to be taken forever. Since our case involves a temporary violation only, it seems even more likely that permission could be given.

Since the risk of suicide among male-to-female transsexuals who do not undergo a change of sex is extremely high, and since living "as a female" for at least a year prior to surgery (two years in Israel) is a pre-condition for surgery, it might be asked what grounds there are to place a prohibition like that of wearing women's clothing on the level of those prohibitions which may not be violated even to save ones life.

Castration:

There are two possible activities that could be violations of the prohibition of castrating a male. The most obvious one is the sex change surgery itself. During this surgery, testicles are removed, and while the penis is not actually severed, the bulk of the tissue is exised, and the remainder turned inside-out, so that to the naked eye, it appears as if the whole of the penis has been removed.

However, as Rav Waldenberg has pointed out, there is a serious question as to whether physical castration of non-functional organs is considered castration according to Jewish law. Since the hormones taken by pre-operative transsexuals prior to surgery are liable to result in irreversible chemical castration, the surgery may not constitute castration at all.

This leads to an interesting situation. Taking a single hormone pill or shot cannot chemically castrate a male. It is the cumulative effects of the hormones that have this result. From a halakhic point of view, this may be significant, since there is no actually "maaseh" (act) that results in the chemical castration. No act actually occurs that can be pointed to as violating the prohibition of castrating a male.

In general, the lack of a "maaseh" reduces the severity of an eventual violation. Whether this would be the case here is something that would need to be addressed by a rabbi.

If chemical castration does take place, it can be questionable whether it is irreversible or not. The only way to tell would be for the person to stop taking the hormones for an extended period of time and to check and see. This is unlikely to be feasible. Whether it is possible to make a halakhic assumption one way or another is another issue that would need to be addressed by a rabbi.

If chemical castration does not take place, we come back to surgery, which would be an act of castration. But who is in violation of this prohibition? Since we say that "ain shaliach lidvar aveira" (there is no concept of agency with regards to a transgression), only the surgeon would be guilty of this violation. The transsexual who does not raise a knife and is in fact unconscious during the procedure, cannot be held culpable.

However, the question remains whether the transsexual would be in violation of "lifnei iveir" (causing another to transgress). Here, we have to ask also whether the prohibition of "lifnei iveir" includes causing a non-Jew to transgress. If it does not, a non-Jewish surgeon would leave the transsexual free of any violation of castration. I have heard varying views about the applicability of "lifnei iveir" to non-Jews. Again, this would need to be addressed by a rabbi.

To sum up this part of the analysis, taking hormones may result in chemical castration or not. If it does, there is still no "maaseh" of castration. If it does not, the surgery would be a violation of the prohibition of castration, but only on the part of the surgeon. If the surgeon is a non-Jew then the question of culpability on the part of the transsexual would depend on whether or not there is a prohibition of leading a non-Jew to transgress. It is not clear that changing sex from male to female is a violation of the prohibition of castrating a male.

Regarding psychological factors, as mentioned in the previous section, surgery, even if considered to be a full violation of the prohibition of castration, is not a transgression that requires one to die rather than violate it. With all the factors calling into question the strength of the violation here, it is even more questionable whether a transsexual can be prevented halakhically from having this surgery.

Another relevant issue is that surgery has the effect of ending the transgression of wearing women's clothing. Once surgery has been performed, the transsexual is now a woman, and the transgression no longer applies. We have a principle regarding the violation of Shabbat to save a life that says, "Better to violate one Shabbat so that he will be able to observe many Shabbatot." In our case, a one-time violation of the prohibition of castrating a male will end a continual violation of the prohibition of wearing women's clothing. As to whether this application of that principle is valid, that would, once again, need to be addressed by a rabbi.

In a case where a transsexual would have a mortal risk of life from not living as a woman, but does not feel such a need to have surgery that risk of life is relevant, it could be argued that surgery should still be permissible. Permitting a transsexual to wear women's clothing is something that would likely only be possible if it were temporary. For it to be temporary, the transsexual would either have to go back to being a man (in which case the violation would end) or have surgery (in which case the violation would end). If there is a risk of life from returning to the life of a man, this risk, combined with the impossibility of permitting the wearing of women's clothing forever, would make surgery not only something that might be permitted, but possibly even preferable.